Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220822 DOCKET: C69629

Huscroft, Harvison Young and Sossin JJ.A.

BETWEEN

Katherine Lena Divitaris, by her Litigation Guardian Triada Divitaris Plaintiff (Respondent)

and

Harold Gerstel, a.k.a. Harold the Jewellery Buyer a.k.a. Harold the Mortgage Closer, Esther Gerstel and Esther Gerstel Inc. Defendants (Appellants)

Counsel: Melvyn L. Solmon and Nancy Tourgis, for the appellants James Zibarras, for the respondent

Heard: August 17, 2022

On appeal from the order of Justice Jane Ferguson of the Superior Court of Justice, dated February 19, 2021.

Reasons for Decision

[1] The appeal to this court was quashed, and sitting as the Divisional Court we denied leave to appeal, with reasons to follow. These are the reasons.

[2] This is an appeal from the order of the motion judge dismissing the appellant’s motion and cross-motion under r. 7.06(2) seeking to remove Triada Divitaris as litigation guardian in her daughter’s action against the appellants.

[3] Prior to the hearing, the Court’s Executive Legal Officer raised with the parties the question whether the order was interlocutory or final. The parties jointly took the position that it was final, relying on remarks made by the Chambers judge in the context of an endorsement reinstating the appeal after it was dismissed by an Order of the Registrar for a failure to perfect.

[4] Chief Justice Morawetz consented to this panel reconstituting as a panel of the Divisional Court in order to hear the appeal, if necessary. The parties were informed that we would first determine whether or not the Court of Appeal had jurisdiction to hear the appeal, and if we concluded that it did not, with the parties’ consent we would determine the leave application as a panel of the Divisional Court. The parties consented and we proceeded on this basis.

[5] We conclude that the order is interlocutory in nature. It concerns the attempt to remove the litigation guardian rather than the substantive merits of the action itself. The order does not bring an end to the action. The remarks of the Chambers judge, made in the context of a decision reinstating this appeal following a registrar’s dismissal, do not confer jurisdiction on this court. Jurisdiction lies in the Divisional Court: see e.g., Willmot v. Benton, 2011 ONCA 104; Must v. Shkuryna, 2015 ONCA 665; Huang v. Pan, 2017 ONCA 268, 30 E.T.R. (4th) 19.

[6] Accordingly, the appeal is quashed.

Leave to appeal to the Divisional Court

Huscroft, Harvison Young and Sossin JJ.A. (sitting as Divisional Court)

[7] Leave to appeal is required. The Divisional Court would normally determine leave requests based solely on the written materials. The appellant made written submissions, and in the unusual circumstances of this case we offered the parties the opportunity to make brief oral submissions.

[8] Having reviewed the materials and considered the oral submissions of the parties, we are not satisfied that the requirements of r. 62.02(1) have been met. This is not a case in which there is confusion in relation to r. 7.06(2) that must be sorted out. There is no reason to doubt the correctness of the order, nor does the proposed appeal involve a matter of general importance that warrants granting leave.

[9] Accordingly, leave to appeal is denied.

[10] The respondent is entitled to costs for the proceedings in both courts. Costs are fixed in the amount of $20,000, all-inclusive.

“Grant Huscroft J.A.”

“A. Harvison Young J.A.”

“L. Sossin J.A.”